Can I Force my Partner to Leave the Family Home?

If you are separating from your partner the thought of living with them in the family home whilst you get divorced and sort out a financial settlement can be distressing.

Our family law solicitors look at your options if you want your partner to leave the family home.

For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.

Family home rights

If you are married or in a civil partnership your right to stay in the family home after you have separated does not depend on whether you are the legal owner or a joint owner.

If you are not a legal owner of the family home you still have rights. You cannot be forced out of the family home but nor can your partner unless:

• You or your partner agrees to leave
• One of you gets an injunction order forcing the other to leave – injunction orders are temporary
• A financial court order states that you or your partner should keep the family home or that it should be sold

There are two issues here. First, injunctions are a short-term fix and do not transfer ownership of the property. The second is that it can take a long time to get a financial court order so you may need an injunction before you secure your financial settlement.

It isn’t always easy to move out of a family home when you or your partner don’t have family living nearby or friends willing to put you up for what could be for over a year or until you can find somewhere to rent.

When you look at the price of renting a property on Rightmove and the limited availability of rental property you can start to appreciate that your partner may struggle to rent somewhere suitable or, if they pay rent, they may not be able to pay towards the mortgage or pay spousal maintenance.

You may want to look at timescales to see if you can speed up the process of reaching a financial settlement so you know where you stand with the family home and to make staying together in the property easier for both of you until the house is sold or the property transferred. It is possible to reach a financial settlement quickly and to record your agreement in a separation agreement. In any later divorce proceedings, the agreement can be converted into a financial court order.

A family law solicitor will talk to you about the information you need to help you reach a quick financial settlement. For example, you will need to know how much the property is worth, the amount outstanding on the mortgage, the monthly mortgage figure, if your mortgage company would agree to either you or your partner taking the existing mortgage on, and if the mortgage company would lend you more so you can pay out your partner an agreed sum as part of an overall financial settlement. The payment needs to take into account the value of pensions and any savings. It is also sensible to look at rehousing costs for you and your partner so you know how much you would each need so you can work out if staying in the family home on a long-term basis is the best option for you.

Occupation and ouster orders

If your partner refuses to leave the family home while you are going through divorce proceedings and sorting out the financial settlement you cannot force them out, even if they are not a legal owner.

You may be able to apply for an injunction order.

An occupation order gives you the right to stay in the family home until a specified date. The order can give you exclusive occupation or say you can use parts of the house or share it all with your partner.

An ouster order excludes or ousts your partner from the property. They cannot return to live at the property until the order ends.

Applying for an occupation or ouster order

You need to apply to the family court for an injunction order. The court will grant you an occupation or ouster order if it thinks it is just and reasonable to do so after considering all the circumstances and factors such as:

• Your housing needs and housing resources and those of your partner and any relevant child
•  Your financial resources and those of your partner
• The likely effect of any order, or the effect of not making an order, on the health, safety, and well-being of you, your partner, or any relevant child
• Your conduct and the conduct of your partner

The court must also consider the likelihood of significant harm and the ‘balance of harm’. This means the court must weigh up the likelihood of significant harm to you or your partner and any relevant child if an order is made, balanced against the likelihood of significant harm if an order is not made.

If the court considers there is significant harm to you or any relevant child, the court should make an injunction order unless your partner or any relevant child is likely to suffer significant harm if the order is made, and the harm is as great or greater than the harm likely to be suffered by you or any relevant child (because of your partner’s behaviour) if the order is not made.

If the court concludes significant harm is not likely, it is not obliged to make the injunction order but may do so.

Getting help with an occupation and ouster order application

Our family law solicitors can help you apply for an injunction order, start no-fault divorce proceedings on your behalf, and negotiate a financial settlement for you.

For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.